Citation Nr: 0629293
Decision Date: 09/15/06 Archive Date: 09/26/06
DOCKET NO. 05-31 717 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder.
2. Entitlement to service connection for diabetes mellitus.
3. Entitlement to service connection for arthritis of the
hands.
4. Entitlement to service connection for hypothyroidism.
5. Entitlement to service connection for a lumbar spine
disorder.
6. Entitlement to service connection for bilateral
bunionectomies.
7. Entitlement to service connection for bilateral
chondromalacia.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran served on active duty from February 1975 to
January 1979. She also served with the Air National Guard
from February 1979 to May 1993.
This appeal arose before the Board of Veterans' Appeals
(Board) from a September 2004 rating decision of the
Department of Veterans' Affairs (VA), Regional Office (RO),
which had denied entitlement to the benefits sought on
appeal. The veteran testified before the undersigned at
Video Conference hearing in December 2005.
The issues of entitlement to service connection for an
acquired psychiatric disorder, a lumbar spine disorder, and
bilateral chondromalacia are addressed in the REMAND portion
of the decision below and are REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Diabetes mellitus was not present in service and had not
manifested to a compensable degree within one year of
separation.
2. Arthritis of the hands was not present in service and had
not manifested to a compensable degree within one year of
separation.
3. Hypothyroidism was not present in service.
4. Bilateral bunions were not present in service and the
bunionectomies were not performed during service.
CONCLUSIONS OF LAW
1. Diabetes mellitus was not incurred in or aggravated by
service and may not be presumed to have been so incurred.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.307,
3.309 (2005).
2. Arthritis of the hands was not incurred in or aggravated
by service and may not be presumed to have been so incurred.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.307,
3.309 (2005).
3. Hypothyroidism was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2005).
4. Bilateral bunionectomies were not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a),
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to notify and assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005);
38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and (4) must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see Mayfield v. Nicholson,
444 F.3d 1328, rev'd on other grounds (Fed. Cir. 2006).
In Pelegrini, the U.S. Court of Appeals for Veterans Claims
held, in part, that a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable AOJ decision on a claim for VA benefits. In the
present case, this was done.
In the Mayfield case, the U.S. Court of Appeals for the
Federal Circuit addressed the meaning of prejudicial error
(38 U.S.C.A. § 7261(b)), what burden each party bears with
regard to the Court's taking due account of the rule of
prejudicial error, and the application of prejudicial error
in the context of the VCAA duty to notify (38 U.S.C.A.
§ 5103(a)). The Federal Circuit held, in effect, that the
Board must specify what documents satisfy the duty to provide
notice to a claimant, and that the Court of Appeals for
Veterans Claims must, if a case is appealed to the Court,
specifically review the Board's findings regarding such
notice. Considering the decisions of the Court in Pelegrini
and Mayfield, the Board finds that the requirements of the
VCAA have been satisfied in this matter, as discussed below.
In a May 2004 letter, the RO informed the veteran of its duty
to assist him in substantiating his claims under the VCAA,
and the effect of this duty upon his claims. The veteran was
informed of the evidence that was necessary to substantiate
her claims. She was told what evidence and information VA
would obtain in her behalf and of the information and
evidence that she could submit. She was told to submit any
evidence relevant to her claims.
The Board concludes that the notifications received by the
veteran adequately complied with the VCAA and subsequent
interpretive authority, and that she has not been prejudiced
in any way by the notice and assistance provided by the RO.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993);
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it
appears that all obtainable evidence identified by the
veteran relative to her claims has been obtained and
associated with the claims file, and that neither she nor her
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal. Thus, for these reasons,
any failure in the timing or language of VCAA notice by the
RO constituted harmless error. See also Conway v. Principi,
353 F.3d 1359, 1374 (2004), holding that the Court of Appeals
for Veterans Claims must "take due account of the rule of
prejudicial error."
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising her as to the evidence needed, and
in obtaining evidence pertaining to her claims, under both
former law and the VCAA. The Board, therefore, finds that no
useful purpose would be served in remanding this matter for
yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). See also Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc).
In addition to the foregoing harmless-error analysis, to
whatever extent the recent decision of the Court in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
requires more extensive notice in claims for compensation,
e.g., as to potential downstream issues such as disability
rating and effective date, the Board finds no prejudice to
the veteran in proceeding with the present decision. Since
the claims for service connection are being denied, nor
disability evaluations and no effective dates will be
assigned, so there can be no possibility of any prejudice to
the veteran.
II. Applicable laws and regulations
To establish service connection, there must be (1) medical
evidence of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999).
Active duty includes a period of active duty for training in
which the individual was disabled or died from disease or
injury incurred in or aggravated in the line of duty.
38 C.F.R. § 3.6(a) (2005).
Under the applicable criteria, service connection may be
granted for a disability the result of disease or injury
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131 (West 2002 & Supp. 2005).
Where a veteran has served for 90 days or more during a
period of war, or during peacetime service after January 1,
1947, and diabetes mellitus or arthritis becomes manifest to
a degree of 10 percent within one year from the date of
termination of such service, such disease shall be presumed
to have been incurred in service, even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.307, 3.309 (2005).
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See
38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2005). When there
is an approximate balance of evidence regarding the merits of
an issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.102, 4.3 (2005). In Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that
"a veteran need only demonstrate that there is 'an
approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim. See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
III. Factual background and analysis
Diabetes mellitus
The veteran's service medical records developed between
February 1975 and January 1979 contain no complaints of or
treatment for diabetes mellitus. The January 1979 separation
examination noted that her urine was negative for sugar.
There was some question as to whether or not the veteran had
diabetes in February 1984; however, follow-up by an
endocrinologist failed to diagnose this disorder. The first
documented diagnosis was noted in August 1991. Her September
1991 Medical Board examination from the Air National Guard
noted the recent onset of this disorder. She has been
treated with Insulin since her diagnosis.
After a careful review of the evidence of record, it is found
that entitlement to service connection for diabetes mellitus
has not been established. There is no objective indication
that this disorder was present in active duty or had
manifested to a compensable within one year of her discharge
from active duty, that is, by 1980. The diagnosis was made
in early to mid-1991 by a private physician; there is no
indication that this diagnosis was made while the veteran was
serving during a period of active duty for training with the
Air National Guard. Therefore, there is no evidence to
support a grant of service connection on either a direct or a
presumptive basis and the claim must be denied.
In conclusion, it is found that the preponderance of the
evidence is against the veteran's claim for service
connection for diabetes mellitus.
Arthritis of the hands
The veteran's service medical records from her period of
active duty from February 1975 to January 1979 contain no
complaints of or treatment for arthritis of the hands. The
January 1975 entrance examination and the January 1979
separation examination are both negative for this disorder.
The veteran's Air National Guard records contain the reports
of periodic examinations conducted in November 1982 and
September 1986, as well as the September 1991 Medical Board
evaluation. None of these note the presence of arthritis of
the hands.
A September 1999 private treatment note found degenerative
arthritis at the base of both of the veteran's thumbs. A
June 2002 treatment note found Heberden's nodes at the DIP
joints and some swelling. A July 2002 note diagnosed mild
degenerative changes in the hands. No large joint
abnormalities were found. In November 2002, she complained
to her private physician of diffuse pains in the joints.
There was some swelling in the hands. There was squaring at
the first CMC joint with tenderness in both hands. The
impression was of osteoarthritis with transient flare,
possible manifestation of early erosive osteoarthritis, now
resolved.
After a careful review of the evidence of record, it is found
that entitlement to service connection for arthritis of the
hands has not been established. There is no indication in
the objective records that this condition was present either
in service or to a compensable degree within one year of her
separation from active duty. In fact, this disorder was not
found until, at the earliest, 1999, several years after her
discharge from service. Therefore, there is no evidence to
support a grant of service connection on either a direct or a
presumptive basis.
In conclusion, it is found that the preponderance of the
evidence is against the veteran's claim for service
connection for arthritis of the hands.
Hypothyroidism
The veteran's medical records from her February 1975 to
January 1979 period of service do not show any complaints of
or treatment for thyroid difficulties. Her January 1975
entrance examination and her January 1979 separation
examination were both negative. The records from her Air
National Guard service show that her November 1982 periodic
examination was within normal limits. In February 1984, she
was noted to have an enlarged thyroid without overt
hyperthyroidism. The September 1986 periodic examination
referred to thyroid trouble since 1984, noting that she had
taken medication since that time.
Private treatment records from 1991 and 1992 show the
veteran's treatment for hypothyroidism. An August 1992 Air
National Guard examination showed that she was on synthyroid,
having been diagnosed with hypothyroidism "years ago."
After a careful review of the evidence of record, it is found
that entitlement to service connection for hypothyroidism has
not been established. There is no indication in the service
medical records from her active period of service that any
thyroid disorder was diagnosed. While the National Guard
records noted a private diagnosis of hypothyroidism, there
was no indication that this disorder was caused by her
service in the National Guard or that it had been diagnosed
during a period of active duty for training. Therefore,
there is no suggestion in the record that hypothyroidism was
incurred in or aggravated by active service or during a
period of active duty for training; as a consequence, service
connection cannot be awarded.
In conclusion, it is found that the preponderance of the
evidence is against the veteran's claim for service
connection for hypothyroidism.
Bilateral bunionectomies
The veteran's service medical records from her February 1975
to January 1979 period of service do not show any complaints
of or treatment for bunions. While there was one finding of
metatarsalgia in January 1976, bunions were not referred to
or diagnosed.
The veteran was seen by a private physician on March 8, 1989
with hallux abductal valgus of the left foot. She underwent
surgical correction on March 15, 1989. In April 1989, she
underwent surgical correction for hallux abductal valgus of
the right foot. She was not on active duty for training at
the time of this treatment.
After a careful review of the evidence of record, it is found
that entitlement to service connection for bilateral
bunionectomies has not been established. There is no
indication that the veteran had bunions in service. While
she underwent surgical correction in March and April 1989,
there is no indication that these surgeries were performed
during a period of active duty for training, or that bunions
were diagnosed during a period of active duty for training.
Therefore, it cannot be found that service connection for
bilateral bunionectomies is justified.
In conclusion, it is found that the preponderance of the
evidence is against the veteran's claim for service
connection for bilateral bunionectomies.
ORDER
Entitlement to service connection for diabetes mellitus is
denied.
Entitlement to service connection for arthritis of the hands
is denied.
Entitlement to service connection for hypothyroidism denied.
Entitlement to service connection for bilateral
bunionectomies is denied.
REMAND
The veteran has requested service connection for an acquired
psychiatric disorder, a lumbar spine disorder, and bilateral
chondromalacia. The veteran's service medical records show
that on her January 1975 entrance examination she had a
history of a depressive reaction for which she had been
treated between November 1972 and September 1973. The
objective examination, however, was normal. She and her
husband were seen for martial counseling and she was seen
twice in 1978 for psychotherapy (no details were provided).
In the 1990's, she sought treatment for depression. In
December 1998, she stated that she had been treated for
depression at the age of 12. The veteran was not afforded a
VA examination. Therefore, it is unclear from this record
whether or not the veteran suffers from an acquired
psychiatric disorder which existed prior to service and, if
so, whether any such disorder was aggravated by her period of
service. Furthermore, it is not clear whether any acquired
psychiatric disorder was superimposed over any preexisting
disorder. As a consequence, it is determined that a VA
examination would be helpful in this case.
In regard to the lumbar spine disorder claim, the veteran has
claimed that she was seen in August 1991 by a private
physician, T.I., for a back injury she claimed to have
suffered when she was serving on active duty for training.
However, there are no records from this physician for this
time period in the claims folder. The Board finds that an
effort should be made to obtain these records before a final
determination of this claim can be made.
Finally, the veteran has claimed service connection for
bilateral chondromalacia. The service medical records note
that at the time of her January 1979 separation examination,
she had complained of crepitus in both knees. She was
diagnosed with bilateral chondromalacia in the mid-1980's.
However, because she had never been provided a VA
examination, there is no opinion of record as to whether or
not the crepitus noted at the time of her discharge from
service in January 1979 was an early manifestation of the
later diagnosed chondromalacia. Such an opinion would be
helpful prior to a final determination of the claim.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (CAVC)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim, including the degree of
disability and the effective date of an award. In the
present appeal, the appellant was provided with notice of the
type of information and evidence that was needed to
substantiate his claim for service connection, but he was not
provided with notice of the type of evidence necessary to
establish a disability rating or effective date for the
disability on appeal. As these questions are involved in the
present appeal, this case must be remanded for proper notice
under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that
informs the veteran that a disability rating and an effective
date for the award of benefits will be assigned of service
connection is awarded, and also includes an explanation as to
the type of evidence that is needed to establish both a
disability rating and an effective date.
Accordingly, the case is REMANDED for the following action:
1. Send the veteran a corrective VCAA
notice under 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b), that includes an
explanation as to the information or
evidence needed to establish a disability
rating and effective date for the claim on
appeal, as outlined by the CAVC in
Dingess/Hartman v. Nicholson, Nos. 01-1917
and 02-1506 (U.S. Vet. App. Mar.3, 2006).
2. The veteran must be afforded a
complete VA psychiatric examination. The
claims folder, to include the service
medical records, must be made available to
the examiner to review in conjunction with
the examination, and the examiner must
indicate in the examination report that
the claims folder was so reviewed. After
reviewing the entire claims folder and
following the examination, the examiner
must answer the following questions:
(a) did the veteran suffer from a
psychiatric disorder, to include
depression, prior to her entrance onto
active duty in February 1975?
(b) if it is found that an acquired
psychiatric disorder preexisted service,
did her period of active service aggravate
the disorder beyond its natural
progression?
(c) if a psychiatric disorder was
present prior to service, did the veteran
suffer from an acquired psychiatric
disorder that was superimposed over any
preexisting disorder?
All special studies deemed necessary to
answer the above questions must be
conducted. A complete rationale for all
opinions expressed must be provided.
The veteran must be informed of the
importance of reporting to the scheduled
examination and of the consequences of
failing to so report. See 38 C.F.R.
§ 3.655 (2005).
3. The veteran must be afforded a
complete VA orthopedic examination of the
knees. The claims folder, to include the
service medical records, must be made
available to the examiner to review in
conjunction with the examination, and the
examiner must indicate in the examination
report that the claims folder was so
reviewed. After reviewing all the
relevant treatment records and following a
complete examination of the veteran's
knees, the examiner must render an opinion
as to whether it is at least as likely as
not that the complaints of crepitus at the
time of her separation from service in
January 1979 were an early manifestation
of the bilateral chondromalacia diagnosed
in the late 1980's.
All special studies deemed necessary to
address the above must be conducted. A
complete rationale for the opinion
expressed must be provided.
The veteran must be informed of the
importance of reporting to the scheduled
examination and of the consequences of
failing to so report. See 38 C.F.R.
§ 3.655 (2005).
4. The veteran must be asked to provide
the complete name and address of the
private physician that treated her for
lumbar spine complaints in August 1991.
She should sign and return a consent form
authorizing the release of these records
to VA. All efforts to obtain these
records must be documented for the record.
5. Once the above-requested development
has been completed, the veteran's claims
for service connection for an acquired
psychiatric disorder, a lumbar spine
disorder, and bilateral chondromalacia
must be readjudicated. If the decisions
remain adverse to the veteran, she and her
representative must be provided with a
supplemental statement of the case, and an
opportunity to respond. The claims folder
must then be returned to the Board for
further appellate consideration, if
otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs